Citation Nr: 0001549 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-27 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a February 1979 rating decision that denied service connection for varicose veins of the right leg. 2. Whether there was CUE in a February 1979 rating decision that assigned a zero percent rating for residuals of a fracture of the right wrist. 3. Entitlement to an increased rating for residuals of a fracture of the right wrist, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Terence D. Harrigan, Counsel INTRODUCTION The veteran had active military service from September 1966 to April 1969. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) that found that there was no clear and unmistakable error in a February 1979 rating decision that denied service connection for varicose veins of the right leg and assigned a zero percent rating for residuals of a fracture of the right wrist, as well as from a decision of the Newark, New Jersey, RO that assigned a 10 percent rating for residuals of a fracture of the right wrist. FINDINGS OF FACT 1. A February 1979 rating decision that denied service connection for varicose veins of the right leg involved CUE in that the law was not properly applied to the facts before the adjudicator at that time. 2. Although the veteran was not medically shown to have varicose veins at the time of the February 1979 rating decision, medical evidence then before the RO revealed evidence of angiomatous veins of the right leg in service and on VA examination in November 1978. 3. A February 1979 rating decision that granted service connection for residuals of a fracture of the right wrist and assigned a zero percent evaluation was supported by the evidence then of record and consistent with the extant pertinent legal authority. 4. The veteran has residuals of a fracture of the right wrist manifested by tenderness on palpation at the right radial tyloid process, weak right hand grip, extension of the wrist limited to neutral and no medial-lateral movement of the wrist. CONCLUSIONS OF LAW 1. The February 1979 rating decision that denied service connection for varicose veins of the right leg involved CUE and is reversed. 38 U.S.C.A. §§ 5108, 5109A, 7105(d) (West 1991) 38 C.F.R. §§ 3.104, 3.105, 3.156(a) (1999). 2. The veteran's angiomatous veins of the right leg were incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.304(b), 3.105(a) (1999). 3. The February 1979 rating decision that granted service connection for residuals of a fracture of the right wrist and assigned a zero percent rating did not involve clear and unmistakable error. 38 U.S.C. § 355 (1976); 38 C.F.R. § 4.71a, Diagnostic Codes 5213, 5215 (1978); 38 C.F.R. § 3.105(a) (1999).. 4. The criteria for a rating in excess of 10 percent for residuals of a fracture of the right wrist are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5212, 5213, 5214, 5215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Background No pertinent abnormality was noted on the veteran's entrance examination in July 1966. Service medical records reveal that in November 1966 the veteran complained of pain in both legs with swelling and prominence of small superficial blood vessels. Examination revealed that there were multiple areas of telangioma on both legs. There was no evidence of thrombophlebitis. In May 1968 ,it was reported that the veteran sustained a fracture of the right distal radius. She was treated with closed reduction and a cast. In August 1968 range of motion of the wrist was from 0 degrees extension to 30 degrees palmer flexion. Ulnar and radial deviation was to 10 degrees. Supination was to 0 degrees and pronation was to 80 degrees. X-rays revealed a solid union of the fracture. The radial articular surface tilted back 18 degrees rather than the normal 12 degrees forward. The impression was stiffness of the joint due to fracture and immobilization and malunion of a fracture of the distal right radius. In October 1968 it was reported that the veteran continued to have limited range of motion without much pain. Sustained gentle pressure increased dorsiflexion to about 15 degrees. X-rays revealed that the joint spaces were well maintained, but the radial tilt was reversed about 10 degrees. On separation examination in April 1969, range of motion of the right wrist was from 0 degrees extension to 45 degrees flexion. Ulnar and radial deviation were to 10 degrees. On VA examination in November 1978, the veteran complained of chronic pain in the right wrist and right hand. She reported stress pain with any type of pressure and weakness in the right hand. She also complained of varicose veins on the right leg with pain on standing. Examination revealed that no enlarged or tortuous subcutaneous veins. There were intra-dermal angiomatous veins in the skin on the right leg and ankle area. There was no swelling, pigmentation or induration of the ankle area. Examination of the right wrist revealed anatomical contours. Motion was to 50 degrees dorsiflexion and 25 degrees palmer flexion with complaints of pain at the limits of motion. The veteran complained of marked tenderness at the region of the navicular. Forearm supination was to 70 degrees and pronation was to 70 degrees. X-rays revealed some demineralization of the bones with no evidence of recent fracture. Diagnoses were no evidence of varicose veins of the right leg and residuals of a fracture of the right wrist. A February 1979 rating action denied service connection for varicose veins of the right leg on the basis that the evidence of record did not show varicose veins. That same rating action granted service connection for residuals of a fracture of the right wrist and assigned a zero percent rating. The veteran was notified of that decision, and filed a notice of disagreement which was received by the VA in April 1979. A statement of the case was issued in July 1979. The appeal was not perfected within one year after issuance of that statement of the case. In May 1996, the veteran's representative requested that the veteran's claim for service connection for a right lower extremity vascular condition be reopened. It was asserted that there was clear and unmistakable error in the prior denial of service connection for a right lower extremity vascular condition and in failing to award a compensable evaluation for residuals of a right wrist fracture. It was specifically asserted that the record at the time of the rating decision showed limitation of motion of the right wrist with weakness of grip strength and pain. II. Analysis A. Clear and Unmistakable Error Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110 (West 1991). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). Service connection for varicose veins of the right leg was denied by the RO in a decision dated in February 1979. That decision was not appealed and became final. 38 U.S.C.A. § 7105(d) (West 1991). That decision can be revised only upon a showing that it was clearly and unmistakably erroneous or upon presentation of new and material evidence. 38 U.S.C.A. §§ 5108, 5109A (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.105, 3.156(a) (1999); Manio v. Derwinski, 1 Vet.App. 140 (1991). The Board notes that under 38 C.F.R. §§ 3.104(a) and 3.105(a), taken together, a rating action is final and binding in the absence of CUE. "[P]revious determinations which are final and binding...will be accepted as correct in the absence of clear and unmistakable error." 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior decision will be reversed or amended. Id. A decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). In Russell v. Principi, 3 Vet. App. 310 (1992), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") (en banc) defined CUE as "...the sort of error which, had it not been made, would have manifestly changed the outcome." The Court noted further that "In order for there to be a valid claim of CUE, the claimant, in short, must assert more than disagreement as to how the facts were weighed or evaluated; the appellant must show that the correct facts, as they were known at the time, were not before the adjudicator or that pertinent regulatory or statutory provisions were incorrectly applied." Russell, 3 Vet. App. at 313. In addition, "[I] t is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A claim that the evidence was not properly weighed or evaluated cannot constitute CUE, and the allegation of CUE must specifically state what error occurred and how the outcome would have been manifestly different. Id. at 44. Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part. 38 C.F.R. § 3.103 (1999). Applying the pertinent legal authority to the facts of this case, the Board finds that the February 1979 denial of the claim for a disability characterized as "varicose veins" contained CUE. VA has long had a duty to grant every benefit supported by law. In this case, the veteran claimed service connection for varicose veins and, since medical examination showed no evidence of varicose veins, the RO denied service connection. However, entitlement to service connection for a disability clearly demonstrated in service medical records and on VA examination after separation from service should not have been simply because the veteran inaccurately identified the disorder in filing a claim for benefits. In this case, the service medical records and VA examination in November 1978 clearly show that the veteran had angiomatous veins of the right leg. Accordingly, the Board finds that the denial of service connection for angiomatous veins of the right leg by the RO in February 1979 was clearly and unmistakably erroneous in that the law was not correctly applied to the facts as they were known at that time. Thus, there is a proper basis for granting service connection for angiomatous veins of the right leg in this case. However, the Board also concludes that there was no CUE with respect to the February 1979 assignment of a noncompensable rating for residuals of a fracture of the right wrist. In this regard, the Board notes that the VA's Schedule for Rating Disabilities provided a 10 percent rating for limitation of motion of the wrist for dorsiflexion less than 15 degrees or palmer flexion limited in line with the forearm. See 38 U.S.C. § 355 (1976); 38 C.F.R. § 4.71a, Diagnostic Code 5215 (1978). A 10 percent rating was also provided for malunion of the radius with bad alignment (Code 5212) and for limitation of supination to 30 degrees or less (Code 5213). A 20 percent rating was provided for limitation of pronation where motion is lost beyond the last quarter of the arc and the hand does not approach full pronation. Code 5213. At the time of the February 1979 rating action the veteran was shown to have only slightly limited pronation and supination. Neither palmer flexion nor dorsiflexion were sufficiently limited to meet the schedular standards for a compensable rating. X-rays did not reveal malunion of the radius. There was no atrophy or limitation of motion of the hand. In light of those medical findings, the RO was within the bounds of rating judgment in concluding that the veteran's disability of the right wrist did not satisfy the criteria for assignment of a compensable rating. Accordingly, the Board must conclude that that decision did not involve clear and unmistakable error. B. Increased Rating As regards the current claim for an increased rating for residuals of a right wrist fracture, the Board notes that on VA examination in February 1997, the veteran complained of right wrist pain with occasional radiation to the thumb and index finger. Examination revealed that there was tenderness on palpation at the right radial tyloid process area of the wrist with weak right hand grip. There was no medial-lateral movement of the wrist and extension of the wrist was limited to neutral. Range of motion of the wrist was reported to be from 0 degrees extension to 30 degrees flexion. X-rays revealed an old healed fracture of the distal radius and osteopenia. The diagnosis was residuals of a fracture of the right wrist with weakness of the right hand and limitation of motion (0 degrees on flexion, and 40 degrees on extension). See 38 C.F.R. § 4.71, Plate I (1999). The Rating Schedule provisions setting forth the various criteria necessary for a 10 percent rating for the veteran's right wrist disability are unchanged since 1979 and were discussed above. A 20 percent rating is assignable where there is nonunion of the radius in the lower half without loss of bone substance or deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5212 (1999). A 20 percent rating is also assignable where there is limitation of pronation and motion is lost beyond the last quarter of the arc and the hand does not approach full pronation (Code 5213) or where there is ankylosis of the wrist (Code 5214). Since the veteran's right wrist disability is not shown to produce such severe symptoms, even when functional loss due to pain and weakness is considered (see 38 C.F.R. §§ 4.40, 4.45 (1999); DeLuca v. Brown, 8 Vet. App. 202, 205-7 (1995)), there is no basis for assigning a 20 percent rating for residuals of a fracture of the right wrist in this case. The above determination is based upon consideration of applicable provisions of the Rating Schedule. Additionally, however, there is no showing that the veteran's disability currently under consideration reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that the disability is not objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings). Moreover, the condition is not shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER As the February 1979 rating decision that denied service connection for varicose veins and failed to grant service connection for angiomatous veins of the right leg involved clear and unmistakable error, service connection for angiomatous veins of the right leg is granted. As no clear and unmistakable error was involved in February 1979 rating decision that denied entitlement to a compensable rating for residuals of a fracture of the right wrist, that aspect of the appeal is denied. A rating in excess of 10 percent for residuals of a fracture of the right wrist is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals